Opinion
HDSP182694
06-16-2016
Legacy Buildings, LLC v. Thomas Logan, Jr. et al
UNPUBLISHED OPINION
SUBSEQUENT HISTORY: Rehearing denied by Legacy Bldgs., LLC v. Logan, (Conn. Super. Ct., July 12, 2016)Petition denied by Legacy Bldgs., LLC v. Logan, (Conn., Nov. 8, 2016)
MEMORANDUM OF DECISION ON SUMMARY PROCESS COMPLAINT, MOTION TO DISMISS AND MOTION FOR USE AND OCCUPANCY
Nicola E. Rubinow, J.
This memorandum of decision addresses the issues raised through the summary process complaint, based on lapse of time, filed by the plaintiff Legacy Buildings, LLC (Legacy Buildings) seeking possession of premises alleged to be in the possession of the defendants Thomas Logan, Jr. (Thomas Logan), Marilyn Logan and Kenneth Scott (Scott). The memorandum of decision also addresses the special defenses presented for the defendants Thomas Logan and Marilyn Logan, the Motion to Dismiss presented for Marilyn Logan, and the motion for use and occupancy presented for Marilyn Logan.
The summary process claims and related issues were tried and/or presented to the court on April 26, 2016. Legacy Buildings is represented by counsel; Thomas Logan and Marilyn Logan each have filed appearances for themselves; Scott has not filed an appearance. Neither Marilyn Thomas nor Scott attended court proceedings on April 26, 2016. The plaintiff and Thomas Logan did attend and participate in court on that date. The plaintiff presented one witness and submitted a single exhibit in evidence; Thomas Logan testified for himself; and all evidence was subject to cross examination.
Legacy Buildings bears the burden of proving the operative allegations of its complaint by a fair preponderance of the evidence. Thomas Logan and Marilyn Logan bear a like burden of proof insofar as the special defenses are concerned.
The standard of proof, a fair preponderance of the evidence, is " properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981). " The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint." Gulycz v. Stop & Shop Cos., 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992), citing Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). " While a plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it. Lukas v. New Haven, supra, 184 Conn. 211.
See Civil Jury Instructions Civil Jury Instructions, 2.6-2 Burden of Proof-Affirmative Defenses.
For the reasons stated herein, the court finds all issues in favor of Legacy Buildings, LLC and enters judgment of possession in its favor.
As discussed in Parts I and III, Marilyn Logan and Scott are in default, and are susceptible to the entry of judgments against them.
I
FACTUAL FINDINGS AND RELEVANT PROCEDURAL HISTORY
The court has reviewed the pleadings and considered the evidence in its entirety using the applicable principles of law and equity. After hearing and without objection from the trial participants, the court has taken judicial notice of the pending summary process file as well as of the civil action known as American Tax Funding, LLC v. Geraldine Lewis, Docket No. HHD-CV11-6023146-S. The facts as found and set forth throughout this decision were proved at trial by a fair preponderance of the evidence.
" The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties . . ." Cavolick v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005). " It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony . . ." (Internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). " [T]he trier is free to juxtapose conflicting versions of events and determine which is more credible . . . It is the trier's exclusive province to weigh the conflicting evidence and determine the credibility of witnesses . . . The trier of fact may accept or reject the testimony of any witness . . . The trier can, as well, decide what--all, none, or some--of a witness' testimony to accept or reject." (Citations omitted; internal quotation marks omitted.) State v. Osborn, 41 Conn.App. 287, 291, 676 A.2d 399 (1996). The trial court's function as the factfinder " is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Internal quotation marks omitted.) In re Christine F., 6 Conn.App. 360, 366, 505 A.2d 734, cert. denied, 199 Conn. 808, 809, 508 A.2d 769, 770 (1986).
On and prior to January 21, 2016, and at all times thereafter, Thomas Logan resided at the single-family dwelling unit located at 59 Deerfield Avenue, Hartford, CT (the premises) along with Marilyn Logan and Scott. Originally, the defendants' residence at and occupancy of the premises was pursuant to an presumptive agreement they had with Geraldine Lewis (Lewis), who once had owned the premises. Lewis once was a party to a mortgage on the premises provided by American Tax Funding, LLC (American Tax). On June 28, 2011 American Tax filed a mortgage foreclosure action against Lewis (American Tax Funding, LLC v. Geraldine Lewis, Docket No. HHD-CV11-6023146-S). On October 11, 2011 Lewis was found in default in that case. On November 9, 2011 the court (Robaina, J.) granted the motion to substitute ATFH Real Property, LLC (ATFH Real Property) for American Tax as the plaintiff in the foreclosure action. On October 28, 2011 the court (Peck J.) issued a judgment of foreclosure by sale; that judgment of foreclosure subsequently was opened and on September 24, 2012 the court (Wahla, J.) extended the sale date until January 19, 2013 at 12:00 noon. On May 2, 2013 the committee, Atty. Alan Rosenberg, signed and filed its committee deed upon Form JD-CV-74; this form reflected that also on May 2, 2013 the deed was signed by witnesses and acknowledged before the committee, all subject to approval of the Superior Court (#137, HHD-CV11-6023146-S). On May 8, 2013 the court (Vacchelli, J.), among other actions, approved the committee's report, and approved the committee's sale and deed. (#139.86, HHD-CV11-6023146-S.) On May 10, 2013 upon Form JD-CV-74, the court (Vacchelli, J.) executed written approval of the committee's deed, coafirming the committee's sale of the premises to ATFH Real Property. (#140, HHD-CV11-6023146-S.)
http://civilinquiry.jud.ctgov/DocumentInquiry/DocumentInquiry.aspx?DocumentNo=6125046. This Form JD-CV-74 (#137) reflects that it was signed in the presence of the following persons, listed in the order in which their signatures appear on the deed maintained in the court's foreclosure file: Howard S. Rosenberg; Patricia A. Canny; and the committee, Alan P. Rosenberg.
http://civilinquiry.jud.ct.gov/DocumentInquiry/DocumentInquiry.aspx?DocumentNo=6163716.
http://civilinquiry.jud.ct.gov/DocumentInquiry/DocumentInquiry.aspx?DocumentNo=6164894. The court file reflects the following handwritten entry upon Judge Vacchelli's May 10, 2013 approval of the committee deed: " Original sent to committee 5/10/13 [illegible initials], TAC [Temporary Assistant Clerk]." This Form JD-CV-74 (#140) also represents that it was signed in the presence of the following persons, listed in the order in which their signatures appear in the court's foreclosure file: Howard S. Rosenberg; Patricia A. Canny; and the committee, Alan P. Rosenberg.
Thus, as of May 2013, ATFH Real Property had become the sole owner of and sole title holder to 55 Deerfield Avenue, Hartford, CT through operation of law in American Tax Funding, LLC v. Geraldine Lewis, Docket No. HHD-CV11-6023146-S. Thereafter, on November 13, 2014, ATFH Real Property quit claimed all of its interest in the premises to Legacy Buildings, LLC. As a result of the execution of the quit claim deed, Legacy Building, LLC became the sole owner of and sole holder of title to 55 Deerfield Avenue, Hartford, CT. (Ex. 1; Tes. Henry-Clay.)
The court received in evidence, as Exhibit 1, a certified copy of the quit claim deed exemplifying the transfer of the premises from ATFH Real Property to the plaintiff Legacy Buildings on November 13, 2014, a date that followed Judge Vacchelli's May 2013 approval of the committee transfer of the premises to ATFH Real Property. Subsequent to its November 13, 2014 execution, that quit claim deed was recorded in the land records of the City of Hartford on January 30, 2015. (Ex. 1; Tes. Henry-Clay.)
On November 13, 2014, when it acquired ownership and title to the premises, Legacy Buildings knew that Thomas Logan and Marilyn Logan were in residence at 55 Deerfield Avenue, Hartford, CT. Thomas Logan and Marilyn Logan have never been parties to any written lease with Legacy Buildings permitting them to reside at, use and occupy the premises. However, subsequent to the foreclosure proceedings involving Lewis, Thomas Logan, Marilyn Logan and Scott resided at, used and occupied the premises from November 13, 2014 through early January 2016 pursuant to an oral month-to-month lease with Legacy Buildings. (Tes. Henry-Clay, T. Logan.)
The court credits Thomas Logan's admission that the defendants never had a rent-to-own agreement with Legacy Buildings related to the premises.
In January 2016, Legacy Buildings determined that it would no longer extend a month-to-month lease with Thomas Logan, Marilyn Logan and/or Kenneth Scott On January 21, 2016, Legacy Buildings caused a notice to quit to be served upon Thomas Logan, Jr., Marilyn Logan and Scott, informing each individual that due to lapse of time, they were to leave the premises by the end of that month, on or before January 31, 2016. Although each defendant in the summary process action was duly served with the notice to quit, no defendant left the premises as directed. Instead, each has remained in residence, using and occupying and possessing the premises ever since. (Tes. Henry-Clay, T. Logan.)
On February 26, 2016, Legacy Buildings filed the pending amended summary process action against Thomas Logan, Jr., Marilyn Logan and Scott, based on its claim of lapse of time, with an amended summary process summons. On February 25, 2016 the amended summary process documents were served by a state marshal upon each defendant. On March 8, 2016 Thomas Logan filed his self-represented appearance, answer and special defenses. On March 10, 2016 Marilyn Logan filed her self-represented appearance, answer and special defenses. As previously noted, Scott has never appeared or participated in the summary process case. On March 10, 2016, the plaintiff denied all special defenses that had been raised.
On March 11, 2016, a Motion for Court to Order the Plaintiff to Accept Payment for Use and Occupancy (Motion for Use and Occupancy) was filed on behalf of Marilyn Logan. Attached to this motion was a memorandum of law conceding that " this court has the inherent authority and has personal and subject matter jurisdiction over the parties." (Memorandum of Law, 3/11/16.) On April 12, 2016 a Motion to Dismiss was filed for Marilyn Logan accompanied by a supporting memorandum of law. Notwithstanding the jurisdictional concession expressed in the Motion for Use and Occupancy, the motion to dismiss filed for Marilyn Logan alleged that the court lacks jurisdiction over the summary process allegations.
This memorandum of Law was filed over the signature of " Marilyn Logan (PRO-SE)." (Emphasis in the original.)
The court file reflects that his motion to dismiss was filed at 9:55 a.m. on April 12, 2016. The court file also reflects that at that exact time and date, a Form JD-CL-12 appearance was filed by " Jerome T. Dunbar (Attorney-In-Fact pursuant to C.G.S. Sec. 1-51) . . ." on behalf of Marilyn Logan.
On April 13, 2016 the court notified the appearing parties, including the plaintiff, Thomas Logan and Marilyn Logan, that the following matters would be heard and/or tried on April 25, 2016: the motion to dismiss, the motion for use and occupancy, and the summary process case.
II
THE MOTION TO DISMISS
The April 12, 2016 motion to dismiss apparently bases its allegation that the court lacks jurisdiction over the summary process action upon its claims that the plaintiff's notice to quit, summons and complaint " are defective because Legacy Buildings, LLC is not the owner or lessor of the property [at issue] as evidenced by the City of Hartford Connecticut Clerks office that reflects ATFH Real Property, LLC as the owner." (Emphasis in the original.) (Motion to Dismiss, 4/12/16.) The related memorandum of law also asserts that the plaintiff's action is subject to dismissal because " [t]here is a Prima Facia (sic) showing that the plaintiff is not the legal owner and is not entitled to maintain this action." (Memorandum of Law, 4/12/16.) In support of the claim that Legacy Buildings is not the legal owner of 59 Deerfield Avenue, Hartford, CT, a document was attached to the April 12, 2016 memorandum in support of the motion to dismiss, purporting to represent that although the committee appointed for 59 Deerfield Avenue, Hartford, CT had sold the premises to ATFH Real Property, LLC, the committee had not signed the Foreclosure by Sale Committee Deed Form JD-CV-74 for 59 Deerfield Avenue, Hartford, CT until December 12, 2014, a date following ATFH's quitclaim of the premises to Legacy Buildings as reflected in Exhibit I, and that this transfer of real property was not perfected until January 12, 2015 when the court (Vacchelli, J.) confirmed the committee's sale. (Memorandum of Law, 4/12/16.) If credited, the document attached to the memorandum of law for Marilyn Logan could establish that ATFH Real Estate had no authority to transfer the premises to Legacy Buildings during November 2014 because the committee had not executed the deed of sale to ATFH Real Property until December 12, 2014, and because the court had not approved the committee deed until January 12, 2015. Accordingly, if credited, the document presented in support of the motion to dismiss for Marilyn Logan could support the conclusion that because Legacy Buildings had not lawfully acquired title to or ownership of the premises in November 2014, Legacy Buildings was not an entity authorized by General Statutes § 47a-23(a) to issue the January 21, 2016 notice to quit or to bring the pending summary process action.
The memorandum of law filed in support of the motion to dismiss argues that the court lacks both personal and subject matter jurisdiction pursuant to " Connecticut General Statutes § 47a-1 to 47a-74" embracing not only the provisions of Chapter 832 (summary process) and Chapter 834 (court proceedings on housing matters). (Memorandum of Law, 4/12/16.) Furthermore, without specificity or indicia or relevance, the memorandum of law in support of the motion to dismiss alleges jurisdictional defects based upon the entirety of Title 47a including Chapter 830 (rights and responsibilities of landlords and tenants), Chapter 831 (advance rental payment and security deposits, Chapter 833 dealing with entry and detainer, and Chapter 833a dealing with public enforcement of health and safety standards.
The court is not persuaded by any aspect of the motion to dismiss, and concludes that it maintains jurisdiction over the pending summary process action. In reaching this determination, the court has relied upon the records maintained in the previously referenced court file, American Tax Funding, LLC v. Geraldine Lewis, Docket No. HHD-CV11-6023146-S, finding that the records maintained therein provide a highly reliable, authentic and credible history of all issues related to the litigation over the ownership of 55 Deerfield Avenue, Hartford, CT and ATFH's acquisition of full authority to transfer the property in May 2013, long prior to November 2014 when ATFH quit claimed the premises to the plaintiff. Contrary to the claims raised by the motion to dismiss and supporting memorandum, as referenced in Part 1, the court's own records clearly and convincingly establish that, among other things: ATFH Real Estate was substituted for the named plaintiff in the foreclosure action through the order issued on November 9, 2011 (#116.86); on May 2, 2013, the committee filed its foreclosure by sale committee deed indicating that the premises had been sold in all respects to ATFH Real Property, LLC (#137); Judge Vacchelli granted the committee's motion for approval of the committee deed on May 8, 2013 (#139.86); Judge Vacchelli executed the foreclosure by sale committee deed on May 10, 2013, exemplifying the committee's action in having sold and conveyed, by May 2, 2013, the premises known as 59 Deerfield Avenue, Hartford, CT in all respects, after judgment of foreclosure by sale, to ATFH Real Property, LLC (#140); and the court's TAC entered a mark upon that committee deed on May 10, 2013, consistent with Judge Vacchelli's action. (#140). Thus, as found in Part I, as of May 10, 2013, ATFH Real Property was lawfully entitled to transfer the premises to a third party such as Legacy Buildings. Therefore, through ATFH's lawful transfer of its interest in the premises to the plaintiff in November 2014, Legacy Buildings Real Estate became the sole owner and holder of title to 55 Deerfield Avenue, Hartford, CT. The plaintiff held the lawful status of ownership, entitling it to pursue eviction proceedings, when the notice to quit was served in January 2016, and when the summary process action was commenced.
http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=HHDCV116023146S.
In contrast, upon considering the issues raised by the motion to dismiss, the court attributes no weight to the document attached to the supporting memorandum. The court received no information relating to the genesis of this document, and declines to find it either valid, accurate, relevant or credible under the circumstances of this case. Although appearing to reflect Judge Vacchelli's January 12, 2015 approval of a committee's deed after sale by foreclosure, and although attempting to establish that a committee sold the premises at issue on December 12, 2014, the document bears no reliable indication that it is an actual copy of a public record relating to the actual transactions recorded in the court file related to the foreclosure proceedings for 55 Deerfield Avenue, Hartford, CT, described in Part I. Although the attached version of a Form JD-CV-74 document appear to have been executed by Judge Vacchelli, it so differs from both Forms JD-CV-74 #137 and #140 maintained in the court's American Tax Funding, LLC v. Geraldine Lewis, Docket No. HHD-CV11-6023146-S file as to raise significant questions about its relation to this summary process case. This attached document presents the signature of " Diane C. Castro" but does not bear the signature of " Patricia A. Canny, " although Canny's signature appears on filings #137 and #140 in the underlying foreclosure action; the signature of " Howard Rosenberg" is present upon the attached document but has been entered on a line other than that utilized by this signer upon filing #137 and #140 in the underlying foreclosure action. Moreover, this attached document does not reflect the previously referenced TAC's handwritten entry upon Judge Vacchelli's approval of the committee deed (#140). Finally, the document presented in support of the motion to dismiss is inconsistent with the court's historical record of the foreclosure proccedings involving 55 Deerfield Avenue, Hartford, CT, which reflect no activity whatsoever as to ownership of the premises occurring after May 10, 2013. See American Tax Funding, LLC v. Geraldine Lewis. Docket No. HHD-CV11-6023146-S. As the court file reflects that no actions were taken with regard to ownership of the premises after Judge Vacchelli's May 10, 2013 approval and execution of the foreclosure by sale committee deed, there is no basis for attributing any validity to the document attached to the memorandum in support of the motion to dismiss.
See Connecticut Code of Evidence § 10-4 and the case law cited in the Commentary thereto. The court attributes great weight to Exhibit 1, which is a certified photocopy of a quit claim deed, presented in evidence in accordance with CCE § 10-4, to establish through its inherent indicia of authenticity that Legacy Buildings acquired the premises from ATFH Real Property on November 13, 2014. See footnote 8.
During 2013, following Judge Vacchelli's approval of the committee deed on May 10, the court file in American Tax Funding, LLC v. Geraldine Lewis, Docket No. HHD-CV11-6023146-S reflects only the filing of a Motion for Determination of Priorities and Supplemental Judgment and submission of a related affidavit of debt on June 5th, addressing attorneys fees and payment of liens upon the premises; no orders were entered with regard to that motion or affidavit. The court file reflects no activity in 2014 and a single action in 2015, unrelated to the ownership of the premises, by way of a Motion for Supplemental Judgment--Foreclosure by Sale & Awarding of Postjudgment Legal Fees. That motion was filed under date of September 16, 2015 and granted that date by the clerk on behalf after consideration by the court (Wahla, J.).
Viewed in context, the document attached to the memorandum of law in support of the motion to dismiss was likely proffered in an effort to establish that Judge Vacchelli did not approve the foreclosure by sale committee deed until January 12, 2015. However, for the reasons previously discussed, the court finds the records reflecting Judge Vacchelli's May 10, 2013 approval of the foreclosure by sale committee deed upon Form JD-CV-74 (#140) to be highly reliable, certain, and precise. The attached document attempts, but fails, to reflect judicial conduct affecting the premises on January 12, 2015, nearly two years after ATFH's lawful acquisition of 59 Deerfield Avenue, Hartford, CT. The document thus fails to counter Legacy Building's valid claim that in November 2014 it had acquired 55 Deerfield Avenue, Hartford, CT from ATFH, its lawful owner, whereupon the plaintiff became authorized to pursue an eviction action against the defendants, and whereby the court is vested with jurisdiction over the pending summary process complaint.
Despite the protestations in the motion to dismiss and accompanying memorandum of law, no " certified copy of the FORECLOSURE BY SALE COMMITTEE DEED" related to 55 Deerfield Avenue, Hartford, CT, was submitted to the court to establish that transfer of these premises was approved either by the committee in December 2014 or by the court on in January 2015. (Emphasis in the original.) (Motion to Dismiss, 4/12/16.) No prima facie showing has been made " that the plaintiff is not the legal owner and is not entitled to maintain this action." (Memorandum of Law, 4/12/16.) To the contrary, when the notice to quit was served upon each defendant, and when the summary process action was commenced, the plaintiff Legacy Buildings was the sole owner and sole title holder of 55 Deerfield Avenue in Hartford, CT, with full authority to proceed in accordance with the provisions of § 47a-23(a), contained within Chapter 832 dealing with summary process, for the purpose of removing Marilyn Logan, Thomas Logan, and Scott from the premises.
For these reasons, the motion to dismiss is denied.
III
RESOLUTION OF THE SUMMARY PROCESS CLAIMS
The court first addresses the interests of Kenneth Scott, who has failed to appear in this matter, and who also failed to attend the summary process trial. On March 16, 2016 Legacy Buildings filed a Motion for Default for Scott's failure to appear, accompanied by a military affidavit. The court grants that motion finding: that Scott has never appeared; that the military affidavit submitted by the plaintiff was sufficient to support the entry of default against Scott; and that this defendant is in default for failure to appear in the matter. As Scott's default effectively admits of each of the allegations brought against him, Legacy Buildings has met its burden of proof on the summary process issues as to this defendant. The default renders Scott susceptible to the judgment of possession in favor of the plaintiff upon the default.
" As our Supreme Court has explained, the entry of a default judgment conclusively establishes the facts alleged in the plaintiff's complaint. Smith v. Snyder, 267 Conn. 456, 468, 839 A.2d 589 (2004)." Dziedzic v. Pine Island Marina, LLC, 143 Conn.App. 644, 645, 72 A.3d 406, 407 (2013). In other words, " [t]he entry of a default constitutes an admission by the defendant of the truth of the facts alleged in the complaint." DeBlasio v. Aetna Life & Casualty Co., 186 Conn. 398, 400, 441 A.2d 838 (1982). See also Bank of America, FSB v. Franco, 57 Conn.App. 688, 693, 751 A.2d 394 (2000) (" A default admits the material facts that constitute a cause of action . . . and entry of default, when appropriately made, conclusively determines the liability of a defendant." [Internal quotation marks omitted.])
See General Statutes § 47a-26; Practice Book § 17-30. See also Practice Book § § 17-20(a), (f), 17-21, 17-33. In addition, Practice Book § 17-19 specifically provides: " If a party . . . fails to appear in person or by counsel for trial, the party may be nonsuited or defaulted by the judicial authority." Practice Book § 17-33 provides, in relevant part: " (a) If a defendant is defaulted for failure to appear for trial, evidence may be introduced and judgment rendered without notice to the defendant. (b) Since the effect of a default is to preclude the defendant from making any further defense in the case so far as liability is concerned, the judicial authority, at or after the time it renders the default . . . may . . . render judgment . . . in summary process actions . . ." (Emphasis added.)
The court next addresses the interests of Marilyn Logan, who appeared in this summary process matter but who was absent from trial and who did not participate in hearing of the pending motions, despite the court's due notice. As Marilyn Logan failed to appear at and failed to attend the trial and/or motion hearings as scheduled, the court finds Marilyn Logan in default for: failure to appear at and attend the scheduled summary process trial; failure to attend the hearing scheduled for the pending motion to dismiss; and failure to appear at and attend the hearing scheduled for the motion for use and occupancy payments that had been filed on her behalf on March 11, 2015. Marilyn Logan's default effectively admits of each of the allegations brought against her in the summary process action; thus, Legacy Buildings has met its burden of proof on each allegation of its complaint as to this defendant, rendering her susceptible to a judgment of possession in favor of the plaintiff upon the default.
See footnote 16. Marilyn Logan's default further supports the court's determination not only of the motion to dismiss in favor of the plaintiff and also supports the court's finding in favor of the plaintiff as to any relevant issues raised in the motion for use and occupancy filed on behalf of Marilyn Logan but apparently abandoned given her absence from the scheduled hearing. See Part V.
See footnotes 16 and 17.
The court further finds that Legacy Buildings has met its burden of proof on the sole ground for summary process, lapse of time, pending before the court as to Thomas Logan, and to Marilyn Logan and Kenneth Scott as well, based upon the facts as found in Part I, independent of the above referenced defaults. " To prevail on a claim for lapse of time, the plaintiff must establish, by a fair preponderance of the evidence, the following essential elements: 1. The existence of an oral or written weekly, monthly or yearly rental agreement; 2. The Plaintiff is the lessor or owner of the subject premises; 3. The address of subject premises; 4. The date of the rental agreement that has terminated; 5. Notice to quit: service date and termination date; and 6. That the defendant is still in possession. Conn. Gen. Stat. § 47a-23(a)(1)(A) et seq. 'Termination of lease [by lapse of time] signifies that the lease--whether express or implied or whether oral or written--will lapse at the end of the current period and will not be renewed.' Yale University v. Valinho, Superior Court, juclicial district of Hartford/New Britain at Hartford, Docket No. SPN 9407-20487 (October 13, 1994, DiPentima, J.) (Hartford #1033) [12 Conn.L.Rptr. 668, ]." Beech Tree Ranch, LLC v. Soto, Superior Court, judicial district of Hartford, Housing Session, Docket No. HDSP-165127, (June 11, 2012, Oliver, J.).
The first prong of the lapse of time analysis is met by the fair preponderance of the evidence establishing that from November 2014 through early January 2016, the defendant Thomas Logan, with Marilyn Logan and Kenneth Scott, resided at, used and occupied the premises pursuant to an oral month-to-month lease with Legacy Buildings. The second and third prongs are met by the fair preponderance of the evidence establishing that in November 2014 Legacy Buildings became the owner of the premises, being the single-family dwelling unit located at 59 Deerfield Avenue, Hartford, CT, and further establishing that Legacy Buildings leased those premises to Thomas Logan, Marilyn Logan and Scott for the months of November and December 2014, and for January 2015. The fourth and fifth prongs are met by a fair preponderance of the evidence establishing that on January 21, 2016, Legacy Buildings caused a notice to quit to be served upon Thomas Logan, Marilyn Logan and Scott, informing each individual that due to lapse of time, they were to leave the premises on or before January 31, 2016, on which date the month-to-month lease expired. The sixth prong of the lapse of time analysis is met by a fair preponderance of the evidence establishing that although the defendants Thomas Logan and the other defendants were each duly served with the notice to quit, they have remained in residence, using and occupying and possessing the premises ever since. (Tes. Henry-Clay, T. Logan.)
'" [Summary process] is preceded by giving the statutorily required notice to quit possession to the tenant . . . Service of a notice to quit possession is typically a landlord's unequivocal act notifying the tenant of the termination of the lease. The lease is neither voided nor rescinded until the landlord performs this act and, upon service of a notice to quit possession, a [leasehold] is converted to a tenancy at sufferance.' (Citation omitted.) Housing Authority v. Hird, 13 Conn.App. 150, 155, 535 A.2d 377, cert. denied, 209 Conn. 825, 552 A.2d 433 (1988)." Vidiaki, LLC v. Just Breakfast & Things!!!, 133 Conn.App. 1, 22, 33 A.3d 848 (2012). See also Pollansky v. Pollansky, 144 Conn.App. 188, 194, 71 A.3d 1267 (2013) (service of a valid notice to quit itself serves to terminate any previously existing basis for occupancy).
Accordingly, Legacy Buildings has met its burden of proving the essential allegations of its summary process complaint against Thomas Logan, as well as against Marilyn Logan and Kenneth Scott. Each defendant thus is susceptible to a judgment of possession in favor of the plaintiff.
IV
THE SPECIAL DEFENSES
Marilyn Logan has failed to meet her burden of proving any of the multiple special defenses she alleged in response to Legacy Building's summary process complaint through the Form JD-HM-5 submitted or through the " Supplemental special Defense & Appendix Attached [th]ereto And by this reference made a part hereof." (Form JD-HM-5, 3/10/16.) Absent from the trial proceedings despite due notice, as found in Parts I and III, this defendant presented no evidence whatsoever in support of her special defenses. She is in default; having failed to attend the summary process trial, she effectively waived the available opportunity to present such evidence. Under the circumstances of this case, in which the plaintiff has met its burden of proof on the summary process ground as alleged, Marilyn Logan cannot prevail on any of her special defenses.
Similarly, Thomas Logan cannot prevail on either of the special defenses he has presented. (Form HD-HM-5, 3/8/16.) Even if it was relevant to the lapse of time allegations that form the basis of the pending summary process complaint, Thomas Logan presented no evidence sufficient to establish that " [a]ll rent has been paid to [the] landlord, " as alleged in Special Defense ¶ 2.a. Id. Also, even if it was relevant, the court received insufficient evidence from which it could find that Thomas Logan has " a physical or mental disability" as alleged in Special Defense ¶ 2.g. Id. The evidence establishes that 44 Deerfield Avenue, Hartford, CT is a single family dwelling. (Tes. Henry-Clay, T. Logan.) Therefore, even if Thomas Logan had met his burden of proving either aspect of his second special defense, judgment of possession in favor of the plaintiff would not be prohibited. Under these circumstances, Thomas. Logan's special defenses do not provide him the protection he seeks in this case.
General Statutes § 47a-23c(a)(1)(B) protects occupants with that status only if they reside " in a building or complex consisting of five or more separate dwelling units . . ."
V
MOTION FOR USE AND OCCUPANCY
As found in Part I, on March 11, 2016, a Motion for Court to Order the Plaintiff to Accept Payment for Use and Occupancy was filed on behalf of Marilyn Logan. The initial remedy for a defendant's failure to make any use and occupancy payments the court may have ordered would be an order for the filing of an answer which task, as found in Part II, Marilyn Logan had already completed on March 10, 2016 prior to the filing of the motion for use and occupancy. As Legacy Buildings has met its burden of proof on all aspects of its summary process claim, and as the court has found all issues in favor of the plaintiff-landlord, this motion is effectively merged into the judgment rendered against Marilyn Logan upon the pending complaint, and no separate ruling is required.
General Statutes § 47a-26b(d).
Even if such a ruling is required, the court was presented with no basis for granting the relief requested on behalf of Marilyn Logan.
VI
CONCLUSION AND ORDERS
WHEREFORE, for the reasons set forth herein: the court has jurisdiction over this matter; the plaintiff Legacy Buildings, LLC has met its burden of proof as to each essential element of its summary process complaint brought against the defendants Thomas Logan, Jr., Marilyn Logan and Kenneth Scott; the defendants Thomas Logan and Marilyn Logan have failed to meet their burden of proof on any of their special defenses; and no defendant has shown a title in herself or himself which accrued after the giving of the lease or that existed at the time the notice to quit possession or occupancy was served upon them.
See General Statutes § 47a-26d.
AND WHEREFORE, having found the facts, applied the law and balanced the equities, the court now enters judgment of immediate possession of the premises known as 59 Deerfield Avenue, Hartford, CT, in favor of the plaintiff Legacy Buildings, LLC and against Thomas Logan, Jr., against Marilyn Logan, and against Kenneth Scott The stay of execution provided by General Statutes § 47a-35 is FINAL.